Fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug

Misuse of Drugs Act 1971, s.3; Customs and Excise Management Act 1979, s.170(2)
Effective from: 27 February 2012

Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 110 Powers of Criminal Courts (Sentencing) Act 2000 in which case the offence is triable only on indictment.

Class A Maximum: Life imprisonment Offence range: 3 years 6 months’ – 16 years’ custody A class A offence is a drug trafficking offence for the purpose of imposing a minimum sentence under section 110 Powers of Criminal Courts (Sentencing) Act 2000

Class B Maximum: 14 years’ custody and/or unlimited fine Offence range: 12 weeks’ – 10 years’ custody

Class C Maximum: 14 years’ custody and/or unlimited fine Offence range: Community order – 8 years’ custody

User guide for this offence


Step 1 – Determining the offence category

The court should determine the offender’s culpability (role) and the harm caused (quantity) with reference to the tables below. In assessing culpability, the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories, the court should balance these characteristics to reach a fair assessment of the offender’s culpability. In assessing harm, quantity is determined by the weight of the product. Purity is not taken into account at step 1 but is dealt with at step 2. Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender.

Culpability demonstrated by offender’s role

One or more of these characteristics may demonstrate the offender’s role. These lists are not exhaustive.

Leading role

  • directing or organising buying and selling on a commercial scale;
  • substantial links to, and influence on, others in a chain;
  • close links to original source;
  • expectation of substantial financial gain;
  • uses business as cover;
  • abuses a position of trust or responsibility.

Significant role

  • operational or management function within a chain;
  • involves others in the operation whether by pressure, influence, intimidation or reward;
  • motivated by financial or other advantage, whether or not operating alone;
  • some awareness and understanding of scale of operation.

Lesser role

  • performs a limited function under direction;
  • engaged by pressure, coercion, intimidation;
  • involvement through naivety/exploitation;
  • no influence on those above in a chain;
  • very little, if any, awareness or understanding of the scale of operation;
  • if own operation, solely for own use (considering reasonableness of account in all the circumstances).

Category of harm

Indicative quantity of drug concerned (upon which the starting point is based):

Category 1

  • heroin, cocaine – 5kg;
  • ecstasy – 10,000 tablets;
  • LSD – 250,000 squares;
  • amphetamine – 20kg;
  • cannabis – 200kg;
  • ketamine – 5kg.
Category 2

  • heroin, cocaine – 1kg;
  • ecstasy – 2,000 tablets;
  • LSD – 25,000 squares;
  • amphetamine – 4kg;
  • cannabis – 40kg;
  • ketamine – 1kg.
Category 3

  • heroin, cocaine – 150g;
  • ecstasy – 300 tablets;
  • LSD – 2,500 squares;
  • amphetamine – 750g;
  • cannabis – 6kg;
  • ketamine – 150g.
Category 4

  • heroin, cocaine – 5g;
  • ecstasy – 20 tablets;
  • LSD – 170 squares;
  • amphetamine – 20g;
  • cannabis – 100g;
  • ketamine – 5g.

Step 2 – Starting point and category range

Having determined the category, the court should use the corresponding starting point to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. The court should then consider further adjustment within the category range for aggravating or mitigating features, set out below. In cases where the offender is regarded as being at the very top of the ‘leading’ role it may be justifiable for the court to depart from the guideline.

Where the defendant is dependent on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under section 209 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence.

For class A cases, section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 provides that a court should impose a minimum sentence of at least seven years’ imprisonment for a third class A trafficking offence except where the court is of the opinion that there are particular circumstances which (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances.

Class A
CLASS A Leading role Significant role Lesser role
Category 1 Starting point

14 years’ custody

 

Starting point

10 years’ custody

 

Starting point

8 years’ custody

 

Category range

12 – 16 years’ custody

 

Category range

9 – 12 years’ custody

 

Category range

6 – 9 years’ custody

 

Category 2 Starting point

11 years’ custody

 

Starting point

8 years’ custody

 

Starting point

6 years’ custody

 

Category range

9 – 13 years’ custody

 

Category range

6 years 6 months’ – 10 years’ custody

 

Category range

5 – 7 years’ custody

 

Category 3 Starting point

8 years 6 months’ custody

 

Starting point

6 years’ custody

 

Starting point

4 years 6 months’ custody

 

Category range

6 years 6 months’ – 10 years’ custody

 

Category range

5 - 7 years' custody

 

Category range

3 years 6 months’ – 5 years’ custody

 

Category 4 Where the quantity falls below the indicative amount set out for category 4 on the previous page, first identify the role for the importation offence, then refer to the starting point and ranges for possession or supply offences, depending on intent. Where the quantity is significantly larger than the indicative amounts for category 4 but below category 3 amounts, refer to the category 3 ranges above.
Class B
CLASS B Leading role Significant role Lesser role
Category 1 Starting point

8 years’ custody

 

Starting point

5 years 6 months’ custody

 

Starting point

4 years’ custody

 

Category range

7 – 10 years’ custody

 

Category range

5 – 7 years’ custody

 

Category range

2 years 6 months’ – 5 years’ custody

 

Category 2 Starting point

6 years’ custody

 

Starting point

4 years’ custody

 

Starting point

2 years’ custody

 

Category range

4 years 6 months’ – 8 years’ custody

 

Category range

2 years 6 months’ – 5 years’ custody

 

Category range

18 months’ –3 years’ custody

 

Category 3 Starting point

4 years’ custody

 

Starting point

2 years’ custody

 

Starting point

1 year’s custody

 

Category range

2 years 6 months’ – 5 years’ custody

 

Category range

18 months’ –3 years’ custody

 

Category range

12 weeks’ –18 months’ custody

 

Category 4 Where the quantity falls below the indicative amount set out for category 4 on the previous page, first identify the role for the importation offence, then refer to the starting point and ranges for possession or supply offences, depending on intent. Where the quantity is significantly larger than the indicative amounts for category 4 but below category 3 amounts, refer to the category 3 ranges above.
Class C
CLASS C Leading role Significant role Lesser role
Category 1 Starting point

5 years’ custody

 

Starting point

3 years’ custody

 

Starting point

18 months’ custody

 

Category range

4 – 8 years’ custody

 

Category range

2 – 5 years’ custody

 

Category range

1 – 3 years’ custody

 

Category 2 Starting point

3 years 6 months’ custody

 

Starting point

18 months’ custody

 

Starting point

26 weeks’ custody

 

Category range

2 – 5 years’ custody

 

Category range

1 – 3 years’ custody

 

Category range

12 weeks’ – 18 months’ custody

 

Category 3 Starting point

18 months’ custody

 

Starting point

26 weeks’ custody

 

Starting point

High level community order

 

Category range

1 – 3 years’ custody

 

Category range

12 weeks’ –18 months’ custody

 

Category range

Medium level community order– 12 weeks’ custody

 

Category 4 Where the quantity falls below the indicative amount set out for category 4 on the previous page, first identify the role for the importation offence, then refer to the starting point and ranges for possession or supply offences, depending on intent.Where the quantity is significantly larger than the indicative amounts for category 4 but below category 3 amounts, refer to the category 3 ranges above.

Community orders table

The seriousness of the offence should be the initial factor in determining which requirements to include in a community order. Offence-specific guidelines refer to three sentencing levels within the community order band based on offence seriousness (low, medium and high). See below for non-exhaustive examples of requirements that might be appropriate in each.

At least one requirement MUST be imposed for the purpose of punishment and/or a fine imposed in addition to the community order unless there are exceptional circumstances which relate to the offence or the offender that would make it unjust in all the circumstances to do so. For further information see the Imposition guideline.

A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence.

Low

Medium

High

Offences only just cross community order threshold, where the seriousness of the offence or the nature of the offender’s record means that a discharge or fine is inappropriate

In general, only one requirement will be appropriate and the length may be curtailed if additional requirements are necessary

Offences that obviously fall within the community order band

Offences only just fall below the custody threshold or the custody threshold is crossed but a community order is more appropriate in the circumstances

More intensive sentences which combine two or more requirements may be appropriate

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 40 – 80 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for a few weeks
  • Exclusion requirement, for a few months
  • Prohibited activity requirement
  • Attendance centre requirement (where available)

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  •  80 – 150 hours of unpaid work
  • Curfew requirement for example up to 16 hours for 2 – 3 months
  • Exclusion requirement lasting in the region of 6 months
  • Prohibited activity requirement

 

Suitable requirements might include:

  • Any appropriate rehabilitative requirement(s)
  • 150 – 300 hours of unpaid work
  • Curfew requirement for example up to 16 hours per day for 4 – 12 months
  • Exclusion requirement lasting in the region of 12 months

* If order does not contain a punitive requirement, suggested fine levels are indicated below:

BAND A FINE

BAND B FINE

BAND C FINE

Custodial sentences

The approach to the imposition of a custodial sentence should be as follows:

1) Has the custody threshold been passed?

  • A custodial sentence must not be imposed unless the offence or the combination of the offence and one or more offences associated with it was so serious that neither a fine alone nor a community sentence can be justified for the offence.
  • There is no general definition of where the custody threshold lies. The circumstances of the individual offence and the factors assessed by offence-specific guidelines will determine whether an offence is so serious that neither a fine alone nor a community sentence can be justified. Where no offence specific guideline is available to determine seriousness, the harm caused by the offence, the culpability of the offender and any previous convictions will be relevant to the assessment.
  • The clear intention of the threshold test is to reserve prison as a punishment for the most serious offences.

2) Is it unavoidable that a sentence of imprisonment be imposed?

  • Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
  • For offenders on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.

3) What is the shortest term commensurate with the seriousness of the offence?

  • In considering this the court must NOT consider any licence or post sentence supervision requirements which may subsequently be imposed upon the offender’s release.

4) Can the sentence be suspended?

  • A suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.

The following factors should be weighed in considering whether it is possible to suspend the sentence:

Factors indicating that it would not be appropriate to suspend a custodial sentence

Factors indicating that it may be appropriate to suspend a custodial sentence

Offender presents a risk/danger to the public

Realistic prospect of rehabilitation

Appropriate punishment can only be achieved by immediate custody

Strong personal mitigation

History of poor compliance with court orders

Immediate custody will result in significant harmful impact upon others

The imposition of a custodial sentence is both punishment and a deterrent. To ensure that the overall terms of the suspended sentence are commensurate with offence seriousness, care must be taken to ensure requirements imposed are not excessive. A court wishing to impose onerous or intensive requirements should reconsider whether a community sentence might be more appropriate.

Pre-sentence report

Whenever the court reaches the provisional view that:

  • the custody threshold has been passed; and, if so
  • the length of imprisonment which represents the shortest term commensurate with the seriousness of the offence;

the court should obtain a pre-sentence report, whether verbal or written, unless the court considers a report to be unnecessary. Ideally a pre-sentence report should be completed on the same day to avoid adjourning the case.

Magistrates: Consult your legal adviser before deciding to sentence to custody without a pre-sentence report.

For further information and sentencing flowcharts see the Imposition guideline.

The table below contains a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.

For appropriate class C ranges, consider the custody threshold as follows:

  • has the custody threshold been passed?
  • if so, is it unavoidable that a custodial sentence be imposed?
  • if so, can that sentence be suspended?

Factors increasing seriousness

Statutory aggravating factors

  • Previous convictions, having regard to a) nature of the offence to which conviction relates and relevance to current offence; and b) time elapsed since conviction (see above if third drug trafficking conviction)
  • Offender used or permitted a person under 18 to deliver a controlled drug to a third person
  • Offence committed on bail

Other aggravating factors include

  • Sophisticated nature of concealment and/or attempts to avoid detection
  • Attempts to conceal or dispose of evidence, where not charged separately
  • Exposure of others to more than usual danger, for example drugs cut with harmful substances
  • Presence of weapon, where not charged separately
  • High purity
  • Failure to comply with current court orders
  • Offence committed on licence

Factors reducing seriousness or reflecting personal mitigation

  • Lack of sophistication as to nature of concealment
  • Involvement due to pressure, intimidation or coercion falling short of duress, except where already taken into account at step 1
  • Mistaken belief of the offender regarding the type of drug, taking into account the reasonableness of such belief in all the circumstances
  • Isolated incident
  • Low purity
  • No previous convictions or no relevant or recent convictions
  • Offender’s vulnerability was exploited
  • Remorse
  • Good character and/or exemplary conduct
  • Determination and/or demonstration of steps having been taken to address addiction or offending behaviour
  • Serious medical conditions requiring urgent, intensive or long-term treatment
  • Age and/or lack of maturity where it affects the responsibility of the offender
  • Mental disorder or learning disability
  • Sole or primary carer for dependent relatives

Step 3 – Consider any other factors which indicate a reduction, such as assistance to the prosecution

The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.

Step 4 – Reduction for guilty pleas

The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.

For class A offences, where a minimum mandatory sentence is imposed under section 110 Powers of Criminal Courts (Sentencing) Act, the discount for an early guilty plea must not exceed 20 per cent.

Step 5 – Totality principle

If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.

Step 6 – Compensation and ancillary orders

In all cases, the court is required to consider confiscation where the Crown invokes the process or where the court considers it appropriate. It should also consider whether to make ancillary orders.

Step 7 – Reasons

Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.

Step 8 – Consideration for remand time

Sentencers should take into consideration any remand time served in relation to the final sentence at this final step. The court should consider whether to give credit for time spent on remand in custody or on bail in accordance with sections 240 and 240A of the Criminal Justice Act 2003.